Remember, anybody can sue for anything. I friend of mine was recently sued by a well known rock group, because, they claimed, that he was using the same "bass line" as their hit song. Never mind that the bass line wasn't the same notes or melody, the group's lawyer claimed that the "essense" of their song was stolen. The case was thrown out of court, but not before my friend spent about twenty-grand defending himself.

If you want to protect yourself, buy a track from a large music library, owned by a big company with lawyers. Then, if you get sued, it's the library publisher's problem.

Travis
www.Announcing.biz

I thought all rock base lines was doof doof doof doof (4/4). Referencing in film to images and music is very common, as all Nick Park fans will know. There it's a matter of the type of shot and the character of the music. Australian Production Music details costs for using their music (down to 5 secs segment and probably less), but I take it to mean using the actual music as recorded. It will be interesting to hear other relevant experiences.

had a music bakery cd a few years back (at least i think it was mus bak.0 but either way, it was needle drop. (think $75US) that had a rip off of jaws that was so close i thought it was, untill i compared it to the original. very nice, and obviously, not a copyright issue...

leslie

using a MIDI keyboard on a string setting and simply playing a low register D followed by a D# is a two note quote. I have heard it used many times. Another common quote is the high pitched simultaneous d and d# from the shower scene in ...

In fact I often wondered if the Jaws music was actually a low pitched derivitive rip off of Alfred Hitchcock. Ripped off because it takes place in water, lower pitch because were not talking little knife here.

Seems like there's two issues here: the ethical one and the legal one. If you are merely quoting from the original theme, there's no ethical issue, because, as has been pointed out, this is a time-honored artistic practice.

As far as the legal issue goes, you have to evaluate how widely the piece will be seen, the likelihood of anyone bothering to sue you, and whether or not you would realistically need a lawyer to have any suit thrown out as baseless. Especially if the precedent has been well-established. I really hate the idea of lawyers intimidating people into not doing something they have a right to do, simply because few people can afford to mount a legal defense. If you do get sued, and have to hire a lawyer, make sure to immediately counter-sue to recover legal costs. 99 times out of 100, no one will see it, and no one will bother to take you to court.

Then, of course, there's the issue of whether or not you really WANT to re-use what has now become a musical cliche. Kurt Weill's "Mack the Knife" is probably in the public domain by now. Or record something new that's even better than that tired old DAH-DUM DAH-DUM. But, that's the client's call, I suppose.

if it is a parody chances are you are fine as far as use goes. If you want to create something based on you should also be fine. "Jaws" has been made fun of time and time again so it would be hard to say if they have freely *not* allowed it's use before. The movie "Ariplane" jumps to mind for example. An episode of "The Simpsons" is another that jumps to mind.


For some reason over the last week I was actually doing some legal research on this (The whole "fair use" / "derivative" part) - this is legal stuff so be forwarned:

CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994)

SHELDON v. METRO-GOLDWYN PICTURES CORPORATION, 309 U.S. 390 (1940)

How many people new this?

ABKCO Music Inc. v. Harrisongs Music, Ltd.


And I found this funny because of this thread - on the state of Texas's website -

The legal test of "fair use" is beyond the scope of this discussion, but bear in mind that just four notes from a sound recording can be substantial enough to raise questions of infringement. Consider the theme from "Jaws," where four notes are widely recognized as the theme to a classic movie. Sampling those particular four notes may seem like a stronger case for infringement than lifting four notes from the bass track of some obscure funk tune, but either situation could result in a copyright infringement suit. The only way to be sure that you are not infringing any copyrights is to get the proper clearances before you use any samples for commercial purposes.

Dunno if any of that is of any help.

Check the first four notes of Dvorack's 9th (New World) Symphony.

And John Willims certainly was not above being inspired by other composers.

I'll leave it as an exercise for the reader to listen to Katchaturian's Violin Concerto and Ellie Siegmeister's Sunday Driver (from his Brooklyn Suite), and identify in which film megahits they were the inspiration for Williams.

Another reason John William's music sounds so familiar is because of the process used as "tracking."

When George Lucas was putting together a rough cut of Star Wars, he added a temp track of music from several classical pieces. They suggested the mood and feeling that he wanted to convey. One of the reasons that made John so easy to work with was he was able to compose an (original?) score that sounded just like the referenced track, but was a new piece of music.

One example that comes to mind, is at the end of the movie during the award ceremony. That bold, from the heart music you hear just as they step up to the stairs in front of the princess was actually based on none other than Land Hope And Glory, the classic music you hear at many graduations.

As far as using the Jaws theme for the project... It's two notes ....can u be sued for two notes being played over and over ? Reversed ?

Stan

I bring some inside knowledge to the table here regarding this particular theme (Jaws). first I will explain how I come by this knowledge. My girlfriend works in licensing at Universal. One of her "properties" is "Jaws." Other than that, please understand that I don't have a horse in this particular race. The "Jaws" theme IS indeed protected, even though it's "two notes." In fact, it's one of the most vigorously defended pieces of music in the world, along with the" Psycho" strings (shower scene). It has proven time & again to be resilient even against "fair use" and applications where parody is concerned. The reason is that the owners have been able to successfully argue that it is universally recognizeable, and that it represents an important "brand." It is also one of the few pieces of music that is in fact not licenseable. No matter how much you're willing to pay, you can't have it. Same with Psycho.

My $0.02.

Reid C

The copyright situation sure stinks. Nobody is winning, because the copyright holders could be making LOTS more money if there was a way for all of us to pay them for small-time use of their works, and more of us would use their music if we could be assured that it was legal to do so. Instead, all of us are put into this quandary where we must either lose business (to those that WILL use music) or else lose sleep and self-respect, knowing that using this music usually isn't Kosher.

1. Legal issues. Spot has lots of information on this which he has published that provides guidelines regarding fair use. Unlike him, I am not an expert. However, one thing I am certain of: The penalties for anything you are likely to do will be civil, not criminal, and therefore you likely won't go to jail. Also the fines -- even for some of the egregious MP3 music "sharing" offenses -- have been pretty minimal.

2. Practical. Leave ethics aside for just this one paragraph. Practically speaking, it is unlikely for a small-time operator to get sued. This doesn't excuse anything or make it right. It is just a statement of probabilities.

3. Ethical. Ripping off other people's stuff is ethically abhorrent and just flat wrong. However, I could make an admittedly very "intellectualized" argument that absent any mechanism for paying copyright holders for small-time use of their property, there can be no ethical problem. This is NOT a legal argument (legally, you would be liable).

My argument is based on the philosophy final exam given at Oxford years ago to a friend of mine. There was only one question on the exam, and he had four hours to write an answer. The question was: "You are on the moon, alone. Can you do wrong?" (Like I said, my answer is pretty intellectual.) There is no right answer to this question, but one answer is this: You cannot do wrong.

This applies to the current case because if your use is so small as to not affect the value of the original copyright, you are in essence "on the moon" and therefore not interacting with the original holder. Since you cannot exercise your desire to pay the copyright holder, and your actions (because they are too small to affect the general public's perception of the copyrighted work) do not harm the copyright holder, your actions could be deemed ethical. The key to the whole argument (from an ethical perspective) is the assumption that your use does not diminish the remaining value of the copyright, and that there is no way provided to pay for your use.

Put another way, if there were a way to pay, and I didn't, that would be unethical. And, if I used something you owned and its value was thereby diminished, and I didn't compensate you, that too would be unethical. However, if the value was exactly the same (I didn't "use up" part of the asset), and there was no mechanism by which to compensate you, then ethically (although not legally) I have not done a bad thing.

Please don't get all over me, because I'll admit that it's a pretty thin argument, and one that doesn't give me much comfort, but I make it simply to point out that, absent provable harm, the ethics question is not cut and dried. You certainly cannot compare using the music to stealing, and in fact even the law makes a distinction between "stealing" and "unauthorized use" the latter of which is what we are talking about here.

Footnote: If you really wanted to get into a debate (again, ethically, not legally), you could take a position that collectively, using the music in your latest video makes it MORE valuable because music that becomes more familiar also becomes more popular. This was the whole driving force behind the payola scandals of the fifties. It is also the reason why clients want to use familiar music in the first place: It has positive associations. Assuming that we all collectively increase the positive associations with music we use, we are in fact enhancing the value of the copyright holder's property, not "using it up" or diminishing it.

Again, this is just intellectual rambling, not meant to be taken as advice as to what to actually do when faced with this dilemma.

Except that copyright owners are able to successfully argue that unauthorized use of a copyrighted work in fact diminishes it's value & brand association. Your arguments seem mosty to be academic and of the "it should be this way" variety, and with this I agree. But it's not this way. Also, just becuse there's no mechanism for micropayment certainly does NOT open the door for unauthorized use. In fact, the example of "Jaws" is perfect for demonstrating this. Even if there WERE a generalized mechanism for micropayments and limited-use licenses, one would simply NOT be able to license the "Jaws (or "Psycho" or Close Encounters", etc.) theme, because they won't let anyone have it, for any reason, for any amount of money. In this case, where does your argument stand? In other words, if the owner just says no, do you still feel that there's a way to get around that determination, that perhaps the total closeout of legal use makes illegal use the only remedy? This is just an bad argument.

There is no micropayment system available in the U.S. But have you ever thought about why this might be? Perhaps it's because the owners simply don't want to licence on a small scale at all, extra income be damned. They don't want their songs used for cheesy wedding & memorial videos because these things might bring unneeded and unwanted associations to the work. There was some preliminary work done on a form of limited use/micropayment system, and as far as I know it has been abandoned.

Some very interesting input here, I'd like to thank everyone for taking the time to post so much information, there's certainly a lot to digest.
I think John has come close to just what I'm thinking.
Certainly I'm not talking about using anyone else's work, certainly it builds upon their work but mostly what it relies upon is that their work has become part of the vernacular.
Lets say Jaws had been a total flop, almost no one went to see it and John Williams music faded into obscurity. In that situation I could use my own four note bass sequence to my hearts content along with someone swimming in the water and it's just another piece of music independantly composed, performed and recorded.
But now, lets say I have a scene of guys in wigs and gowns circling a car accident (or a recording studio?) with a four note bass sequence playing, probably almost ANY four bass notes would do, and anyone watching that is going to think "Ah, they're sharks, circling for the kill".
Now I certainly haven't stolen Mr Williams work, I've paid a composer and musicians to record a new work, what that work relies upon isn't directly Mr Williams work rather it's the association that all of us have collectively created between anything that sounds vaguely like it and any circling predators.
Now my work would be a total flop if it wasn't for Mr Williams prior efforts but it'd equally be a total flop if we hadn't made it so recognisable and put it into our vernacular. Certainly the value of Mr Williams work isn't diminished by my new work, or is it. I seem to recall similar cases where someones work was referenced in later works which went on to be hugely popular, the originator received no recognition and probably died a pauper. Maybe we just write that off as his bad luck, if others hadn't built on his work then the outcome would probably have been the same anyway.
To me music is a language, at times throughout history new words enter the common language of music. The same thing happens in all languages, just take the word "iPod". Use that today and you could be talking about any mp3 player, it's entered our vernacular. Without Apple's huge success with their product if I said 'eyepod" you'd probably think I was talking about some opthalmic device!
Bob.

That's an awful lot of "let's say" & "what if." The fact is that with this work in particular you're playing with fire. It's true that if the film had been a flop, the theme would not have entered our everyday vernacular and would at least be available for licensing. But the film wasn't a flop, the 2 notes DID enter our vernacular, and the owners of this work are vigorous in their defense of it. There's a guy at universal, a neighbor of mine, a lawyer, whose job it is, all day, every day, to surf EBay looking for unlicensed product - toys, t-shirts, etc. Between uni, Dreamworks & now NBC, there are dozens of attorneys looking for any kind of infringment. They scour boards like this, they look at the videography boards, they deal with music libraries, etc. Err on the side of squeaky clean when it comes to these guys. Seriously.

Yes, agreed.
But if I'm creating a NEW work then I cannot licence their work, I'm not using their work!
I 100% agree that the ripoff merchants deserve all they get, I'd sure as heck be mighty pissed off if someone stole my work and would if I could unleash the legal dogs on them too.
There's recently been a very similar issue down here concerning BBQs. For many years a pretty popular BBQ down here has been the Weber, big spherical device for slowly cooking your meat. Now some well known Scandanvian company made a minature version of it and a very nice peice of work it is too, I guess the idea is that it's small anough to use indoors. No infringement involved, sure it built on the original concept but still it's a new design.
Now someone started knocking off that design in China, I mean the thing is an exact copy. Needless to say those selling the knock off very promptly got hit with a cease and desist.
Bob.

reidc,

Excellent points!

... just becuse there's no mechanism for micropayment certainly does NOT open the door for unauthorized use.

You are extremely perceptive, because this is definitely the assumption underlying my argument, even though I did not explicitly state it. It does seem to me that there ought to be obligations on the copyright holder that would force him or her to attempt to either make a license available, or to serve notice that such license is explicitly withheld. This is one of the things that makes intellectual property that is licensed for "use" different from property that is owned and sold. A copyright does not give the owner unlimited rights. In fact, there are fifteen named limitations to the scope of U.S. copyright rights.

More important, the copyright owner has certain obligations to protect those rights. The most basic example of this concept is the fact that a copyright must be renewed and, if it is not, the copyright holder loses most rights to that property. This is a concept that is totally different from physical property that is actually owned.

Even if there WERE a generalized mechanism for micropayments and limited-use licenses, one would simply NOT be able to license the "Jaws (or "Psycho" or Close Encounters", etc.) theme, because they won't let anyone have it, for any reason, for any amount of money. In this case, where does your argument stand?

The argument would be completely unchanged. If there is a mechanism for payment, and the copyright holder refuses to license his work, for whatever reason, then I would have to look elsewhere. Any attempt on my part to use the work after my request had been refused would not only be a violation of law (which it already is today), but a clear ethical violation as well, because the disapproval would then be explicit. The problem with the situation today is that no such explicit disapproval is possible. What's more, I would think that in most cases, copyright holders would be glad to get more money for their work. Very few people I know turn down money when it is offered, unless they really believe that they can make even more money by turning down the "bird in hand."

I am not sure that owners of works that are extremely popular will eventually be unwilling to license to the "little guy." That assumption is based on current "Hollywood Studio" mentality, most of which is notoriously short-sighted, Luddite, and not particularly perceptive. (I refer you to their initial reactions to TV, VCR, DVD, Internet, and other new technologies, all of which they resisted -- to the point of litigation -- and all of which eventually produced more money than anyone dreamed of).

In other words, if the owner just says no, do you still feel that there's a way to get around that determination, that perhaps the total closeout of legal use makes illegal use the only remedy? This is just an bad argument.

That was definitely NOT what I was trying to argue. If there is a mechanism by which the copyright owner could say no, then just like in other circumstances, "no" really means NO.

There is no micropayment system available in the U.S. But have you ever thought about why this might be? Perhaps it's because the owners simply don't want to licence on a small scale at all, extra income be damned.

Yes, I have thought about this a lot, and I am almost certain that it is NOT because owners don't want to license at small scale. In fact, I don't think copyright owners have had a say in this at all. I refer you to the paragraph above, with special attention paid to the use of the word "Luddite." When dealing with Hollywood and those that surround this industry, you are dealing with people whose idea of creative effort is to recycle old TV shows like "Charlies Angels." They certainly have not yet wrapped their mind around the concept that the Internet really could provide them with thousands and thousands of $100 licenses. Not as ego-gratifying as landing one $100,000 contract that can be reported in Variety, but just as much money.

They don't want their songs used for cheesy wedding & memorial videos because these things might bring unneeded and unwanted associations to the work.

Some artists definitely have this problem, and in fact if you want to make your point even more forcefully, I would say that a copyright holder might not want to have his/her work played underneath images of a Nazi skinhead rally. However, if I were a filmmaker producing such a project and decided to feature a main character using an Apple iPod, I can legally do that, and the associations with that product would certainly be just as awful and just as potentially damaging to that product. It is not clear to me how that is any different, and why a copyright holder should have any more rights to stop me from using the work in the way I want, as long as a license fee is paid.

What a quagmire.

Every time these discussions come up, I'm reminded of the two overriding principles that seem to govern life in our society:

1) Money is more important than ANYTHING, except maybe
2) being the OWNER of something

Which might also be summed up thusly:

Me! Me! Me! Mine! Mine! Mine!

Now that documentaries are considered entertainment instead of news---in part because they're becoming more popular---making docs has become a nightmare. Will I get sued if I show a drunk vomiting on the street and there's a McDonald's sign in the background? If I shoot a group of kids in the park and they have a particular song playing on their boombox do I have to get permission from the publishing company?

Some old docs can't be shown anymore because of the costs associated with clearing the music and other rights, which wasn't neccesary at the time the doc was originally shot & shown, but IS neccesary now.

For me it's come down to this: ACID loops only. Everything else is too much *%#@! trouble.

John et al,
this is all very interesting and has been done to death in this and many other fora but is pretty irrelevant in my and other situations.
I'm looking to create a new work, say in Acid, I simply cannot licence THEIR work because that's not what I'm using! I wouldn't even use the same notes, heck my work could well be totally atonal for that matter so it's not even 'music'. The issue would be however that it'll still make the audience think "Shark".
Bob.

Low D to D#, pause, D# to E, pause, E to E#.

You may send your check for my custom creation to my regular address.

Bob: Look & feel, cadence, rhythm, key. If it can even remotely, possibly be confused with the original work, it could spell trouble. "Look & Feel" is a real big one, and covers an awful lot of ground. A loophole for copyright holders fo massively popular works.

That's closer to the point!
And I'd bet it's one the legal sharks love to have a field day with too. Just a silly thought but I'd probably be better off just stealing the original work, at least then if I got caught there's no legal argy bargy involved, just plead "guilty, your honor" and cop it sweet. The other way I'm certain not only would I cop some penalty but end up having to support a bevy of silks for a month while some poor judge tried to decide the case.
You know, they're the ones we should feel sorry for, poor buggers, imagine trying to decide in these kinds of cases.
Bob.

Just a silly thought but I'd probably be better off just stealing the original work, at least then if I got caught there's no legal argy bargy involved, just plead "guilty, your honor" and cop it sweet.

I agree with that. Your original idea sounded like being "a little pregnant."